Facts of the case

S.D. Warren Company (Warren) operates several hydroelectric dams in Maine. Under Section 401 of the federal Clean Water Act, companies must obtain state approval of "any activity" "which may result in any discharge into the [Nation's] navigable waters." When Warren sought to renew the federal licenses for its dams, the Federal Energy Regulatory Commission (FERC) required that it first get approval from the Maine Board of Environmental Protection because, FERC ruled, the dams resulted in a "discharge." Warren disagreed, arguing that the water which moved through the hydroelectric dams was not actually a "discharge" because it was water from the same river which had just been temporarily re-routed. After Warren's administrative appeals and state court suit (which went to the Maine Supreme Judicial Court) failed, it appealed the case to the U.S. Supreme Court.

Question

Do hydroelectric dams result in "discharge" under the meaning of Section 401 of the federal Clean Water Act?

John G. Roberts, Jr.:

David H. Souter:

This case comes to us on certiorari to the Supreme Judicial Court of Maine.

S. D. Warren operates several hydropower dams on the Presumpscot River in Maine to generate electricity for its paper mill.

Under the Federal Power Act, Warren needs a federal license to operate its dams, and it sought to renew its licenses in 1999.

Section 401 of the Clean Water Act requires that anyone who seeks a federal license to conduct any activity which may result in any discharge into the navigable waters shall provide certification from the state in which the discharge originates, assuring that, among other things, state water-quality standards are met.

Warren was granted its licenses, but subject to its compliance with certain restrictions mandated by the state.

Warren claims that because its dams do not add anything to the river, they do not result in any discharge into it and so do not trigger the need for any such certification from Maine.

The Maine Board of Environmental Protection thought otherwise, and Warren brought this suit in the state courts to challenge that agency’s decision.

The Supreme Judicial Court of Maine concluded that Warren did need to obtain a state certification under Section 401 of the Clean Water Act.

We granted certiorari, and in a unanimous opinion filed today with the Clerk of Court, we affirm.

The key word in this dispute is “discharge”, a term that the Clean Water Act does not define.

The Act tells us that “discharge”, when used without qualification, includes a discharge of “a pollutant and a discharge of pollutants”; but “discharge” when used alone is presumably broader than these included examples, and since the broader term is not defined by the statute, we construe it in accordance with its plain meaning, which in the context of water means “flowing out or issuing out”.

Operating a dam obviously may cause a discharge of this sort.

Warren’s arguments failed to persuade us that “discharge” should be read differently from the ordinary way, invoking the statutory canon noscitur a sociis, which reminds us that a word is known by the company it keeps.

Warren argues that because the word “discharge” keeps company with the phrase “discharge of a pollutant”, a phrase defined to require an addition of something, then “discharge” pure and simple should also be read to require an addition.

But we think the statutory canon is out of place here.

Noscitur a sociis is useful when several items in a list share a common attribute.

But here, Warren seeks to extrapolate a common feature from what amounts to a list of one, the word “discharge and other pollutant” and its plural variant.

This defies general usage; giving one example does not convert express inclusion into restrictive equation.

Further, we do no think Warren’s interpretation is compelled by our prior decision in the case of South Florida Water Management District versus Miccosukee Tribe.

Miccosukee addressed a different section of the Clean Water Act, and it was concerned only with whether an addition had been made as required by the definition of the phrase “discharge of a pollutant”.

The fact that something had to be added to the water in Miccosukee under Section 402 of the Act does not answer the present question of what constitutes a discharge into water under Section 401.

Warren’s reliance on legislative history is also misplaced, as it actually underscores the fact that Congress distinguished the term “discharge” and the term “discharge of pollutants” deliberately in order to use them in separate places and to separate ends.

Finally, we note that Warren admits its dams create changes in the river’s movement and flow that may alter oxygen levels and be harmful to fish and eels.

Changes like this fall within a state’s legitimate legislative business, and Congress passed the Clean Water Act intending to preserve the rights of the states to reduce pollution within their boundaries.

We thus affirm the judgment of the Maine court and find that because a dam raises a potential for a discharge, Section 401 of the Clean Water Act is triggered, and state certification is required.